DOJ returns fire on judicial review dispute

Attorney General Eric Holder is pushing back against an attack from a federal judge in Texas, telling the judge that President Barack Obama’s recent comments about the Supreme Court’s review of the Affordable Care Act are “fully consistent” with longstanding legal principles.

Holder’s comments came Thursday in a memo ordered by 5th Circuit Judge Jerry E. Smith, who questioned whether Obama respects the courts’ power to strike federal laws it finds unconstitutional.

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“The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago,” Holder wrote. “The department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

Smith assigned the memo during oral argument over an unrelated piece of the health reform law Tuesday, the day after Obama said the court would be guilty of an “unprecedented” act of “judicial activism” if it strikes down the health care reform law. Smith, a Ronald Reagan appointee who referred to the health law as “Obamacare,” said the president’s comments questioned whether DOJ respected the court’s authority.

Smith said he wanted the memo to directly address Obama’s comments. But the document barely mentions them.

“The president's remarks were fully consistent with the principles described herein,” Holder wrote.

Holder did use the memo to remind the court that the judiciary traditionally gives Congress a presumption that its laws are constitutional.

“The Supreme Court has often acknowledged the appropriateness of reliance on the political branches' policy choices and judgments,” the letter states. “The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”

Amid widespread criticism of Obama’s remarks Monday, the president on Tuesday said he was merely referring to the courts’ 80-year record of not striking laws relating to the economy and commerce.

“The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress,” he said.

The White House on Thursday continued to defend Obama’s initial remarks as merely confusion over the Commerce Clause.

“I totally grant to you that he did not refer to the Commerce Clause,” White House Press Secretary Jay Carney told reporters. “I think he believed that was understood. Clearly some folks … missed that.”

This article first appeared on POLITICO Pro at 1:38 p.m. on April 5, 2012.

What Obama and his minions say are out-right lies. Either they do not understand the Constitution themselves or they think that people are stupid enough to not know they're lying about it. Activism occurs when something unconstitutional is upheld, or when something constitutional is struck down, thus allowing a precedent regardless of the Constitution. Activism is NOT found in striking down a law found unconstitutional. You can't even have something heard at the Supreme Court unless there is some question to a passed law by an elected legislature, for crying out loud! Nor can the judiciary branch be intimidated by the executive or legislative branches. They are deliberately designed to act as checks and balances on each other for the precise purpose of preventing any one branch too much power over the people.

Republicans don't like all the rulings of the SCOTUS, but they don't invite the Justices to the SOTU and then rebuke them in public. Nor do they say that it is "unprecedented" for SCOTUS to rule that a law is "Unconstitutional". We all know that this is false, and a "Constitutional Law Prof" should know this as well.

What this all shows is the GOP and their partidan judges will never, ever recognize the legitimacy of a democrat president. They believe only they alone have any right to rule. I say rule because they have absoluterly no concept nor respect nor ability to govern.

that texas judge needs to be disbarred. who is he to order the president to explain anything?

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He is a Judicial review judge. Duly appointed by the President and confirmed by the Senate. He has a lifetime appointment. He is a legal scholar. He knows the law, as Obama has clearly demonstrated his lack of knowledge and experience. The judge was hearing a case on the ACA, and wanted to know if the Administration recognized the authority of the court to rule on Constitutionality.

That seemed entirely appropriate since Pres Obama seemed to be challenging the authority of this "unelected body" to overturn laws passed by Congress and signed by the President. The judge wanted to know if the Administration would abide by the ruling of the court regardless of how they ruled.

Simple. His provably false remarks weren’t aimed at Supreme Court justices, but rather at uninformed Americans, especially liberals (is there any other kind?). The most divisive president in history is setting up yet another straw man for his re-election campaign, one that fits directly into his strategy to divide and conquer.

This article nails it! This is exactly what the Socialist currently squatting in our White House is doing.

Republicans don't like all the rulings of the SCOTUS, but they don't invite the Justices to the SOTU and then rebuke them in public. Nor do they say that it is "unprecedented" for SCOTUS to rule that a law is "Unconstitutional". We all know that this is false, and a "Constitutional Law Prof" should know this as well.

Citizen's United will probably go down in history as the singl;e worst ruling ever taken by the SC. That was an act of judicial activism unheard of in the entire history of this country. The GOP loves to frame this as some kind of "threat" as if the SCOTUS could give a hairy rat's butt about what anyone thinks. I doubt anything Obama says will change the inevitable conclusion. When the SC takes up cases like this one, it is to strike it down. And always 5-4. The hearings they hold are just for show. The case has already been decided.

that texas judge needs to be disbarred. who is he to order the president to explain anything?

King Barry really wants to be a dictator.... so I guess he shouldn't to answer to anyone.

A court Order - Hussein should send in the army and arrest the judge!

We should get Barry a set of mirrored sunglasses like other third world dictators...

My point - Hussein is TOTALLY OUT OF CONTROL. This guy is a tyrant wanna be. Anyone who disagrees (and yes - this is a democracy... you are alowed to) gets vilified and trashed by the dictator and chief.

This guy is a disgrace. He does not believe in the constitution. Is a divider and HYPERPARTISIAN.